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LECTURE 



BFLIVEUKD TO TItS 


UNION ACADEMY 


OF 


LITERATURE, 



ART, 


AT ITS SPECIAL MEETING CALLED 


POP THE PUKPOSE, MARCH 7, 1870, 


BY 

HON. GEORGE W. FASOtlAL, 


AUTIZOP- OF ‘^paschal’s ANNOTATED CONSTITUTION,’' ETC. 


Printed by Order of the Academy. 


[COPVRIGUT SKCUItKD.J 



WASHINGTON, D. 0.: 

W, II. & O. II. AL ORRIS ON. 


1870 . 






LECTURE 


DELIVERED TO THE 


AMERICAN UNION ACADEMY 

y^3 5 

OP 


LITERATURE, SCIENCE, AND ART, 

AT ITS SPECIAL MEETING CALLED FOR THE PURPOSE, MARCH 7, 1870, 


BT 

HOIT. GEOEGE W. PASCHAL, 

AUTHOB OF “paschal’s ANNOTATED CONSTITUTION,” ETC. 


Printed by Order of the Academy. 


[OOPYKIGHT SECXTRED.] 


WASHINGTON, D. C.: 

W. II. & o. H. MORRISON. 


1870. 







w 

LECTURE 

DELIVERED TO THE AMERICAN UNION ACADEMY OP LITERA¬ 
TURE, SCIKNCE, AND ART, AT ITS SPECIAL MEETING 
CALLED POR THE PURPOSE, MARCH 1 , 1810. 

BY 

HO]^. GEOEGE W. PASCHAL, 

AUTHOR OF “paschal’s ANNOTATED CONSTITUTION,” ETC. 

Printed by Order of the Academy. 

Ge^sTlemen of the Academy, —I purpose delivering a 
lecture upon the Constitution of the United States, as it is. I 
am aware of the difficulty of the theme. Its very familiarity, 
real and imaginary, admonishes me that no one expects any 
thing novel. But however trite the subject, few lawyers or 
statesmen would be prudent to risk a critical examination upon 
the great charter. And the small number who can repeat it 
from memory, are well aware that its every word and phrase 
have been the subjects of angry debate, and schools do not yet 
agree upon any uniforni interpretation. And while the im¬ 
pression is general, that recent amendments have made great 
changes, very few have stopped to think of the real revolution 
in our government. 

The last ten years have covered a period of eventful history 
in our own country and in the world. Among all the monu¬ 
ments which mark that heroic era, there are none which have 
been so miglity in their effects and will so long endure, as the 
amendments to the Constitution of the United States. 

It has always been a favorite maxim with me, that in the 




XX 


LECTUEE BY THE AUTHOR. 


study of the law, there can be no comprehensive understanding, 
without a careful analysis of the old law,—the mischief and the 
remedy. The law of the present concerns us most; but until 
we dig deep, explore the foundations and understand that of 
the past, we can have no clear conception of that which is act¬ 
ually in force. 

Viewing my task from this stand-point, I will advert to the 
organic amendments as they bear upon the instrument as it 
was, before they were engrafted upon it, and so enlarged the 
powers of the nation, abridged those of the States, and in¬ 
creased and secured the liberties of the people. The amend¬ 
ments known as the thirteenth, and the first and second sections 
of the fourteenth, and also the fifteenth should be read as 
pari materia of the same law. Although of diflbrent dates they 
are logically and necessarily connected, and, taken together, 
they very radically change the original theory of the govern¬ 
ment. 

I will read them in this logical connection. 

“ Amendments to the Constitution, 

“ Akt. XIII., Section 1. Neither slavery nor involuntary ser¬ 
vitude, except as a punishment for crime, whereof the party 
shall have been duly convicted, shall exist within the United 
States, or any place subject to their jurisdiction.” 

“ Aet. XIV., Section 1. All persons born or naturalized in 
the United States and subject to tlie jurisdiction thereof, are 
citizens of the United States and of the State wherein they 
reside. No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the United 
States; nor shall any State deprive any person of life, liberty, 
or property, without due process of law, nor deny to any 
person within its jurisdiction the equal protection of the 
laws. 

“ Section 2. Representatives shall be apportioned among the 
several States according to their respective numbers, counting 


LECTUKE BY THE AUTHOK. 


XXI 


the whole number of persons in each State, excluding Indians 
not taxed. But when the right to vote at any election for the 
choice of electors for President and Vice-President of the 
United States, representatives in Congress, the executive and 
judicial officers of a State, or the members of the legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age, and citizens of the United 
States, or in any way abridged, except for participation in re¬ 
bellion or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State.” 

“ Art. XV., Section 1. The right of the citizens of the 
United States to vote shall not be denied or abridged by the 
United States or by any State on account of race, color, or 
previous condition of servitude.” 

To each of these is added, 

“ Congress shall have power to enforce this article by appro¬ 
priate legislation.” Thus the power to execute is as broad as 
the subject-matter. And the means to be employed may be 
all that are necessary and proper, either to enforce the 
national power, restrain the States, or to protect the citi¬ 
zens. 

A glance at the history which produced these great results 
is an inviting field ; but it would be the history of the govern¬ 
ment itself. The word “ slavery ” is here, for the first time, 
introduced into the Constitution. But as a fact it was acknowl¬ 
edged in the contrast to “ free persons,” and the “ two-fifths 
of all other jiersons,” in the basis of representation now supplied 
by a new clause ; in the “ importation of such persons ” as any 
of the States originally existing should think proper to admit 
for a period of twenty years ; in the “ persons held to service 
in one State escaping into another,” and in the prohibition to 
amend so as to prohibit the importations of “ such persons ” 
until 1808. Thus our fathers shrank from the mention of the 


XXll 


LECTURE BY THE AUTHOR. 


word, so at war with the enlarged idea, that “ all men are 
created free and equal,” for which they had fought, as a self- 
evident proposition; but they did not hesitate to incorporate 
three-fifths of them into the representation, giving an increased 
power, without any of the moral responsibility which should 
ever exist between representatives and constituents; to provide 
for their increase by licensing the barbarous and inhuman 
traffic in them, Avithout the possibility of removing the moral 
taint for the fifth of a century ; and by entering into a solemn 
compact among the States to surrender those who should 
endeavor to escape from their servitude. 

Far be it from me to censure those Avho thus dealt with 
great facts as they were. The States were free to agree to 
this “ more perfect union ” or not as they chose; and as the 
union could not liave been formed Avithout this compromise, 
he is a bold man who will now say that it would have been 
better had it never been created. 

The time limited for the slave trade having elapsed, our 
fathers made haste to prevent it, in a great measure, by severe 
jArohibitory legislation. They also narroAved the area in the 
ISTortliAvest by the contemporaneous ordinance Avhich excluded 
it from the common territory. And as men emigrate more 
from instinct than reason, and the march of our people has been 
AvestAAmrd, the free territory received three times the accessions 
from the slave section AAdiich the latter received from the 
former, thus transferring the balance of poAver to the division 
of free labor. 

The time has hardly arrived to discuss the institution of 
African slavery in America, humanized as it Avas. 

Born and reared in its A^ery center, having spent my life 
in its midst; surrounded by the school Avhich defended it, yet 
never responsible for its evils, I am not here to severely censure 
one generation or another in regard to it. Certainly I am not 
gomg to defend it, or to deny that in all its tendencies it Avas 
economically depressing, and nationally, religiously, and in- 


LECTURE BY THE AUTHOR. xxiii 

dividnally demoralizing. It is enough that it is thus described 
by the best of our law writers:— 

“ By the civil law slaves could not take by purchase or 
descent. They had no heirs, and therefore could make no will. 
They were not entitled to the rights and considerations of 
matrimony, and therefore had no relief in case of adultery. 
ISTor were they proper objects of cognation or affinity, but of 
quaai cognation only. Contubernism was the matrimony of 
slaves; a permitted connection, not partaking of the lawful 
marriage, which they could not contract. The state of slavery 
in this country compares with that existing under the Roman 
law in many respects. The progress of society in civilization, 
more correct notions on the subject of moral obligation, and, 
above all, the benign influence of the Christian religion, have 
softened many of the rigors attendant on slavery among the 
ancients. But the rights of the slave in respect to marriage, 
and the acquisition of property by way of inheritance, remain 
substantially on the same ground.” 

To this evil may be added the absolute right of buying, 
selling, controlling, and almost unlimited punishment by the 
master; the necessity of preaching a lower religion for the 
slave, and of giving a lower interpretation of the Divine Word ; 
of denying all education to the bondmen, and yet to live in 
the constant dread that they would at some time assert their 
freedom. 

But all these evils and every fancied good have been swept 
away by these few simple words: “ Neither slavery nor in¬ 
voluntary servitude * * * shall exist in the Ufiited States, 
or any place subject to their jurisdiction.” 

I would gladly turn away from the sight of the serried 
hosts, horses and chariots, which perished in the red sea of 
blood, in the background of these words engraved upon the 
tablets of the great American heart. I am persuaded that a 
smaller number would be found to cancel this declaration, than 
to dash to pieces the tables of stone on which were engraved 


XXIV 


LECTUEE BY THE AUTHOE. 


the Divine commandments amidst the thunders of Sinai. The 
destruction of slavery was the loss of fortune and of all the 
advantages of afl3.uence to many families. They can illy adapt 
themselves to the change. Yet few would take the step back¬ 
ward. The States where it existed, however unwillingly at 
the moment, acknowledged the necessity of engrafting this 
same principle into their own organic laws, and, generally, 
they ratified this amendment. It was proclaimed on the 
fourteenth day of December, 1865. It not merely swept the 
name and the fact of the system from all our laws, and took 
from the States the power to restore them, but it also opened 
new fields of inquii-y. 

Thro.ugh all the history of our country words of ordinary 
signification had been of very doubtful meaning in our law 
and polity. Thus “ people,” “ persons,” “ citizens,” “ residents,” 
and “ inhabitants ” had to be twisted and tortured in every 
place where they described the free man, the native of the 
soil, the naturalized man, the elector. The tinge of color, 
whether in the free States or slave States, with a few excep¬ 
tions, was a sufficient crime to exclude from all rights the 
emancipated people of African descent. They were not ac¬ 
knowledged to be of the “ people ” who ordained the Constitu¬ 
tion ; the “ electors ” who might choose representatives and 
president; the “ citizens ” eligible to any office, or entitled to 
inter-state “ privileges and immunities,” to passports, trial by 
jury, or to the rights of property. They were denizens with 
no defined status. Yet, whether as men or chattels, these 
beings were a mighty element in the political history of the 
nation until the final day came. “ Soundness upon the negro ” 
controlled all other politics. Extremists for or against slavery 
were the successful competitors for honors. And when, by 
war, and as the logical fruit of the contest, four millions of 
freedrnen were added to the nondescript half million of eman¬ 
cipated, free persons of color,—half of whom were in the free 
and half in the slave States,—there still remained a problem 


LECTUKE BY THE ATJTHOE. 


XXV 


which had to be solved. The word “ citizen,” which meant 
one thing for representative, another for senator, something 
more definite for President, but entirely indefinite as to rights 
in the national courts, of twelve classifications as to the modes 
of creation and description, of no signification as to the right 
of suffrage, had now to be defined by organic law. It is 
strange that no definition is found in the original instrument, 
or in any of the first twelve amendments, which constituted our 
bill of rights. The comprehensive language transmitted from 
Magna Charta was generally held not to apply to those who 
could not claim Caucasian descent. 

As a necessity, a definition and some remedies for the in¬ 
vasion of their civil rights had been passed over the President’s 
veto. The angry discussions which followed, and the conflict¬ 
ing opinions and judicial decisions upon the constitutionality 
of the civil rights law,* rendered it necessary to remove the 
doubts as to congressional power, or to recede, to make the 
law organic, or to risk its repeal. The former course was 
adopted, and more comprehensive words could not have been 
employed. 

“ All persons born or naturalized in the IJnited States, 
and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside.” 

This, with other sections of this amendment, was put before 
the people and virtually carried by popular elections. But 
however carried, it has been proclaimed and acted on as a part 
of the organic law; it is the universal sentiment of the 
nation ; and there is no fact against the means which does not 
apply to the thirteenth amendment. All the amendments have 
been adopted by the great law of general acquiescence. So 
that we could no more recede as to the one than the other. 

As already intimated, the term “ persons ” had been one of 
varied signification. But contemporaneous history leaves no 
doubt of what was intended here. By general terms it was 
intended to incorporate those made free by the thirteenth 

B 


XXVI 


LECTUEE BY THE AUTIIOE. 


amenSbient into the body politic ; and to leave no doubts as to 
the naturalized, Avhether by uniform rule, by purchase, con¬ 
quest, annexation, or treaty. They all alike are entitled to the 
proud distinction of American citizenship. 

And looking to the past evils in reference to the colored race, 
and the naturalized, and to the shameless intolerance against 
the freedom of conlu^nce, of the press, and of speech, the 
guaranty was added, tfi^t “no State shall make or enforce any 
law which shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive any person of 
life, liberty, or property, without due process of law, nor deny 
to any person within its jurisdiction the equal protection of the 
laws.” 

Thus,, whoever is born within the jurisdiction of the United 
States, or is naturalized, goes forth with full assurance that to 
the States is denied the power of discrhnination against him. 

How few lawyers even have contemplated the full scope of 
this declaration ! Life, liberty, and property etnbrace the whole 
range of civil rights. The simple phrase, “ no State shall pass 
any law impairing the obligation of contracts,” has brought 
almost every imaginable contract into review before the Su¬ 
preme Court of the United States. So these much more com¬ 
prehensive words subject every character of State law to the 
final supervision of the highest national tribunal. For what 
law can be passed which does not, in some way, affect the privi¬ 
leges or immunities, or the life, liberty, and property of the 
citizen? Hot that States may not legislate upon all these sub¬ 
jects, but all legislation must be in obedience to the paramount 
law. 

But as “ privileges and immunities ” did not mean that a citi¬ 
zen could carry the local laws of his State into another State, 
but that he is only entitled to the rights and privileges of the 
citizens of that State, no more nor less, and as he was not enti¬ 
tled to vote, as one of his privileges, until the constitution or 
laws of that State gave him power to vote: and, as from the 


LECTURE BY THE AUTHOR. 


xxvii 


foundation of the government, the States had claimed and ex¬ 
ercised the right to determine wh;\t sliall be the qualifications 
requisite for electors, and that right had been so exercised as 
to produce most incongruous inconsistency, with no uniform¬ 
ity, save as to sex and age, and approximate uniformity as to 
color, and as the second section of the fourteenth amendment 
recognizes the power of excluding male inhabitants, being citi¬ 
zens of the United States, at the expense of a corresponding 
deduction in the national representation, a further amendment 
to take away the power of discrimination on account of race, 
color, or previous condition of servitude, seemed to follow as a 
logical sequence. The constitutions of States were liable to be 
changed. There was gross injustice in forcing this suflTrage 
upon the most unwilling States, while the conquerors refused it 
for themselves. * 

It must be borne in mind that the governments which the 
executive had built up in the States which had been engaged 
in the war against the United States, with a single exception, 
rejected this fourteenth article, and the thirteenth had been 
passed without the concurrence of two of them. In their con¬ 
stitutions of 1865 and 1866, these States, in common with the 
great majority of the States of the Union, had excluded the 
black race and their descendants of every hue from all political 
participation in the government. They nevertheless claimed 
that two-fifths of the late slaves had been added to the repre¬ 
sentative basis, while to the whites was committed all political 
power and nearly all the civil rights of the country. How far 
it was possible or proper for a government which had em¬ 
ployed many of the representative men of this race in conquer¬ 
ing those who had made so desperate a struggle to destroy the 
Union, is a question about which men and parties have dif¬ 
fered widely. According to my notions of justice, it is impos¬ 
sible in a republic long to exclude one-eighth of the whole 
fighting population from the polls. The organization of politi¬ 
cal parties and their struggles for power, forever create advo- 


xxviii 


LECTUEE BY THE AUTHOK. 


cates for the manumission of all inhabitants, whether citizens 
or not. Nearly all distinctions based upon property have been 
destroyed, upon the principle that life and liberty, to which all 
have equal rights, and which the poor find it more difficult to 
protect than the rich, are dearer than property. 

The weak expedient of clerical qualifications fails to satisfy 
the philosopher and statesman. Instinctively the mind rushes 
to the conclusion that citizenship and manhood responsibilities 
to society are the safest tests. About this there may never be 
absolute agreement; for there is a proneness to distrust the 
wisdom of the masses ; but of this we may be certain: liberty 
on this continent takes no step backward. Therefore, we need 
not inquire whether it was wise or unwise to ratify the fifteenth 
amendment to the Constitution. It was a measure forced upon 
statesmen by the logic of events and the necessities of previous 
departures. 

We may admit that the independent owner of freehold or 
other property is a safer voter for that property; and even that 
the larger may be his possessions the more careful will he be 
of the true interests of the body politic. But property is only 
one of the absolute rights of freemen. Life and liberty are 
dearer to all men than property, since for his life will man give 
all that he hath. So we may agree that the more learned man 
is in the wisdom of schools, the less liable is he to be deceived 
by demagogues, and the more certain is he to cast his vote for 
wise and virtuous magistrates. But these admissions only im¬ 
pose on us the duty of maintaining institutions so just and 
equal that the industrious may easily acquire independence; 
and so enlightened that education may be accessible to all. 
There is no incentive to become wealthy and wise so strong as 
the desire to participate in public affairs. The country which 
gives the ballot and opens the road to preferment, erects the 
school and displays glittering prizes to ambitious students. 
Therefore, whether the country took a philosophical view of 
the subject or not, the theory of action was, that by the rebel- 


LECTURE BY THE AUTHOR. 


XXIX 


lion, governments practically responsible to the United States, 
had ceased to exist in the revolting States; that the govern¬ 
ments of the President were provisional only, and not in har¬ 
mony with the changed order of things; that the mode of 
rehabilitation and restoration to all the benefits of the Union 
were within congressional control, and, as a means, suffrage 
was bestowed upon the black man in the work of reconstruc¬ 
tion. This was the logic; these the motives. 

When the historian shall come to consider the whole frame¬ 
work of reconstruction, both under the President and under 
Congress, from a philosophical stand-point, he must arrive at 
the conclusion that all these exercises of power were for the 
purpose of securing these new organic guaranties. 

The Constitution had to be amended so as to destroy slavery. 
The President said to the legislatures of eleven States, where 
it had most existed, “ ratify the thirteenth amendment,” and 
nine of them did it. Congress said, “ this is not enough ; we 
must have a fourteenth article.” The President differed, these 
same States refused and Congress devised the plan of creating 
legislatures which would comply. The reconstruction laws 
did the work, and also enabled Congress and the willing States 
to superadd the fifteenth amendment. The change has been 
accomplished as the logical result of the war of ideas upon the 
great subject of liuman slavery. 

This is not the proper place to discuss whether these exer¬ 
cises of power, first by the President and afterward by Con¬ 
gress, were founded in wisdom or not. My purpose is to accept 
the facts and to discuss the Constitution as it is; and fully con¬ 
ceding the power so to amend under the forms of the Constitu¬ 
tion, to inquire what are now our rights ? It is useless to dis¬ 
cuss the means employed to attain the ends. Millions who 
023j)0sed would more strongly resist all efforts to retrace our 
steps. 

The thirteenth article having destroyed slavery, the four¬ 
teenth having fixed upon the freedmen the status of citizenship. 


XXX 


LECTURE BY THE AUTHOR. 


and brought every State law under the immediate supervision 
of Federal control, and the fifteenth having withdrawn from the 
States the power to discriminate between electors, it follows 
that as to rights before the law and at the polls there can be 
no distinction on account of race, color, or previous condition. 
And whether these amendments be regarded as explanatory or 
declaratory, the practical workings of the government have 
thus been changed. Two-fifths of four millions have been 
added to the representative basis; twelve hundred thousand 
have been added to the voting population ; four millions and a 
half of people have been started on the road of human progress ; 
an all-absorbing paramount issue has been measurably removed 
from the arena of party politics; four millions of litigants have 
been added to the list of those who may assert their rights in 
our courts, become the holders of property, the recipients of 
fortune, and the subjects of intellectual wealth. Thps while the 
States have lost much power, the masses have gained many 
new securities for liberty. Sulfrage has been engrafted as a 
privilege and immunity which a State can no more infract than 
it can any other absolute or subordinate right. Those wdio 
complain that there is tyranny in this, forget that liberty to 
every citizen has gained a higher stand and a securer foun¬ 
dation. 

This is not the place to indulge in prophecies as to the future 
consequences. There are those who believe, that this freedom 
will be the destruction of the colored race; that their numbers 
have already decreased and will continue to decrease ; and that 
finally, by decay and amalgamation, they will perish away. 
It is neither expected nor desired, that they should increase in 
the slave ratio. Since the four hundred years of Egyptian 
slavery which swelled the seventy-five of Jacob’s descendants 
to three millions, who escaped through the Red Sea, there has 
been no such increase, as the statistics of American slavery foot 
up from 1810 to 1860. Such an increase in two hundred years 
would have given that race two-fifths as many inhabitants as 


LECTURE BY THE AUTHOR. XXXi 

there are now in the world; and in three hundred years their 
numbers would have been swelled to three times tlie present 
population of the globe. And if the same ratio were }) 0 ssible, 
halt the time which has elapsed since Joshua took up the line 
of march with his army of 600,000 warriors, would leave no foot 
of earth for the black man’s tread ! 

But let not this problem alarm. With the aid of immigra¬ 
tion to the United States, the white race has increased in a 
corresponding ratio, our total of all races swelling from 
7,239,814 in 1810 to 31,443,322 in 1860. The same ratio of in¬ 
crease would give us eleven billions, three hundred and forty- 
three millions, four hundred and thirty thousand, one hundred 
and fifty-nine (11,343,430,159) inhabitants within two hundred 
years. 

The human mind loses itself in contemplation of the destiny 
of this continent which a rude civilization discovered in the 
fullness of time. With a Constitution which now secures equal 
rights to all; liberty and protection for every race; a continent 
so vast in its resources, and the inhabitants of which are so 
ready to be incorporated into one great republic; with the new 
discoveries in medical science and the ameliorations which 
promote longevity; fifty thousand miles of railroad and the 
system yet in its infancy; an interstate commerce which far 
exceeds the international commerce of the whole world; with 
telegraphy which affords instant communication with nearly 
all the inhabitants of the earth ; with the great hives of Asiatic 
myriads coming to our western shores, and already rolling back 
the tide of immigration to the valley of the Mississippi; 'with 
an ever-restless population, which can not pause in the work of 
improvement, what may we not expect of our glorious country 
under its wise government ? And who will undertake to say 
tliat this arithmetical ratio of increase will not be maintained ? 

“ War, pestilence, and famine” are the three great curses 
which God has inflicted to arrest the multiplication of erring 


man. 


xxxii 


LECTURE BY THE AUTHOR. 


The Genoese sailor found here a scattered race, whose abnor¬ 
mal state seemed to be that of exterminating warfare. They 
had made little or no progress in the arts of civilization; they 
have improved little by contact with the European immi¬ 
grants ; they have well nigh perished before our advancing 
strides; and they are the only people to whom our Constitu¬ 
tion is erroneously believed not to extend brotherhood. My 
own reading is, that upon them, as upon all others, has been 
cast the inestimable boon of American citizenship ; and safety, 
peace, uniformity, justice, and humanity demand that they 
should be brought under all the responsibilities of our gov¬ 
ernment. 

We have just passed through a terrible civil war; but it is 
not believed that it has materially arrested our ratio of 
increase, although when we think of the half million of wid¬ 
ows, actual and prospective, which it has caused, we might 
well anticipate some diminution, were it not overbalanced by 
the swelling stream of immigration. 

Pestilence, in the proper sense of the term, our fathers have 
not known, althougli contagious and miasmatic influences have 
often caused great mortality in some sections of our country. 
But these epidemics have now disappeared from many geo¬ 
graphical belts for over half a oentury, and the improvements 
in science give us hope that tlie ratio of mortality will 
decrease. 

Famine is the climacteric in the curse. As yet it has been 
endured by comparatively few upon the continent; it is little 
dreaded by the most indigent in our crowded cities; it is un¬ 
known in our rural districts. The< vast accumulation of 
wealth, organized benevolence, equalized and self-protected 
labor, the more humanized tendencies of men, and the daily 
increasing independence of women, make gaunt famine a thing 
not to be feared while the earth is equal in productiveness to 
the demands of its inhabitants. If we shall be preserved from 
war and pestilence, there is a mighty field for tlie philosopher 


LECTUEE BY THE AUTIIOE. 


xxxiii 


and the lover of his race to he occupied in improving our soil, 
diversifying our industries, and increasing food in a corre¬ 
sponding ratio with the increase of consumers. 

If we can hut remain peacefully as one government, tolerat¬ 
ing every difference in religion, observing scrupulously the 
true landmarks between State and National authority, avoid¬ 
ing those corruptions among magistrates which destroy confi¬ 
dence in popular rule, maintaining justice with equal balances, 
and enlightening the great masses, we have nothing to fear 
from wars, few physical causes for pestilence; and, if Ave 
would avoid the greater calamity of famine for coming ages, 
the most enlightened minds must devote their best energies 
to the improvement of the earth and the multiplication of the 
food-producing animals of the world. 

But I am traveling out of my field. I had only intended 
to discuss the rights of the citizen under the Constitution as 
it now is. To render these rights secure under the national 
aegis, wise legislation and laws to suit the changed organism, 
are loudly demanded. The power-is only limited by the 
appropriateness of the remedies. Legislators have not yet 
risen to the emergency. The transition has been so sudden 
that the people are hardly yet awake to the wonderful reality. 

In the third section of the Fourteenth Amendment there is 
a punitive change. It reads as folloAVS : “3. No person shall 
be a senator or representative in Congress, or elector of 
President and Vice-President, or hold any office, civil or mili¬ 
tary, under the United States, or under any State, who, hav¬ 
ing previously taken an oath, as a member of Congress, or as an 
officer of the United S.tates, or as a member of any State 
legislature, or as an executive or judicial officer of any State, 
to support the Constitution of the United States, shall have 
engaged in insurrection or rebellion against the same, or given 
aid or comfort to the enemies thereof. But Congress may, 
by a vote of two-thirds of each house, remove such disabil- 
ity.” 


XXXIV 


LECTUKE BY THE AUTHOR. 


Considered as a punishment merely, the expedient is hardly 
worthy of a great nation. As a preventive remedy for the 
future and a means of security, it is a kind of logical sequence 
to the third clause of the sixth article, which declares that 
precisely the same class of officers shall be bound by oath or 
affirmation to support this Constitution. The theory is, that 
that oath once taken as a condition to the exercise of a trust, 
creates a perpetual and enduring allegiance, higher and more 
sacred than the natural allegiance due from every citizen to his 
government; and that the magistrate and ex-magistrate who 
disregards his oath should be disqualified from the exercise of 
office in the future. As a means of securing this amendment 
the reconstruction laws excluded from the work of reorganiza¬ 
tion the same class of men, by the use of the same words, and 
by the explanation that “ officer,” as here used, meant civil 
officer^ and that the disqualification was only intended to 
extend to such. 

It is enough to say of these laws, that they liave accom¬ 
plished their end—the ratification of the Fourteenth Amend¬ 
ment, and the logical sequence of this forced change, the 
Fifteenth Article. And now let us hope, as I sincerely believe, 
that the necessity for this disqualification no longer exists j 
and that the congressional clemency may be exercised, and 
full peace and confidence restored, and all citizens,, without 
distinction, staited upon an equal race of usefulness in the 
development of our yet infiint country. 

It is an encouraging fact that the States are amending their 
constitutions to conform to the changes, and are restoring the 
franchise to all. This is wisdom, although, it may not be 
necessary. Voluntary assent is always more desirable than 
compulsory means. All agree that the Constitution is the 
supreme hxAV; and when it clearly defines a right and grants the 
power to protect that right, a uniform law may certainly be 
passed to enforce it. But in a large degree government must 
rest upon the consent of the governed. And to make a law 


LECTURE BY THE AUTHOR. 


XXXV 


effectual, it must be in harmony with the popular will. Yet 
these are not reasons why Congress should not do its whole 
duty, by enacting a wise code for the protection of civil and 
the security of political rights. And certainly there can be 
no such oblivion to past erroneous interpretations as a thor¬ 
ough understanding of the radical changes. 

Let it be understood that these amendments have expur¬ 
gated human slavery from the Constitution of the United 
States, and from the whole country under their jurisdiction; 
have changed the representative basis and founded it upon 
voters as well as numbers; have defined national citizenship 
and thrown around it the guaranties of Federal protection; 
have limited, if not entirely withdrawn the powers of the 
States over suffrage ; have made sacred the official oath to 
support the Constitution, and fixed the seal of disqualification 
upon those who in the past have, and in the future may, engage 
in rebellion against the United States; and, as germaiii to the 
national security, the faith of the people is pledged to the pay¬ 
ment of all debts, past or future, which have been and may 
be incurred in the suppression, of insurrection or rebellion; 
while the stamp of repudiation is fixed upon all debts. State or 
corporate, which may have been incurred in aid of these 
causes. 

These are, indeed, mighty facts accomplished. They are 
restrictions upon the State and Federal governments, so that 
we could only return to the past by the same road through 
which we have reached the present. 

It may be asked, what are now the powers of government 
after the incorporation of these amendments, superinduced by 
so great a revolution ? Here I wish not to enter upon debat¬ 
able ground. We are all agreed that the objects of the 
Constitution were to form a more perfect union, establish jus¬ 
tice, insure domestic tranquillity, provide for the common 
defense, promote the general welfare, and to secure the bless¬ 
ings of liberty to the whole people and their posterity. This 


xxxvi 


LECTURE BY THE AUTHOR. 


preamble yet remains the key to the whole instrument. It is 
more appropriate than it was before a single amendment was 
made. 

We agree that these objects are to be attained by the elec¬ 
tion of senators and representatives to Congress in the mode 
prescribed in the Constitution, and at the times and places and 
in the manner fixed by the States, unless the regulations be 
modified by Congress ; in choosing a President upon the basis 
of representative numbers; in organizing and maintaining 
judicial tribunals, and conferring upon them all the jurisdiction 
contemplated by the Constitution as it was, and by the amend¬ 
ments intended to secure the personal and political rights of 
every citizen. 

As the government is one of limited powers, the manner of 
their exercise has been, and always must be, questions about 
which patriots may differ. 

It is a notable fact that in the history of the country the 
interposition of the executive veto has been so rare as always 
to attract attention, and when the occasions have been of 
moment the people have generally decided at the polls in favor 
of right. So of all the laws ever passed by Congress, only 
half a dozen of them have- been held by the Supreme Court of 
the United States to be unconstitutional. And when these 
decisions have not been in harmony with the judgment of the 
nation, they have hardly had the practical force of precedents. 
In no nation in the world has there ever been sucli an array 
of legal mind, or such modes of constant judicial enlighten¬ 
ment. In a complex government, where there are thirty-eight, 
and soon must be fifty, appellate expounders of the Constitu¬ 
tion, besides the hosts of publicists, reviewers, and barristers 
necessary to carry on such a machinery, absurd and untenable 
precedents can maintain no permanent hold. Courts may not 
bow to the popular will; but they can never withstand the 
just criticism of a nation of lawyers. So the great power of 
impeachment, althougli several times attempted, has only twice 


LECTURE BY THE AUTHOR. 


XXX Y11 


succeeded. We are thus taught that these extraordinary 
powers of one department of the government over the liasty or 
corrupt action of another are fraught with no danger, since, 
with them, the independent action of legislative, executive, 
and judicial functions can be harmoniously preserved, and all 
are alike responsible to the great alembic of popular judgment. 

The enumeration of powers and familiar precedents force all 
to admit that the national government has the right to collect 
national taxes, duties, imposts, excises, and postage ; to regu¬ 
late commerce ; to coin money, and regulate the value thereof; 
to pass uniform rules of naturalization and bankruptcy; to levy 
war; keep armies and navies; to make treaties and national 
compacts; to send ambassadors abroad; to purchase, conquer, 
and annex states, and thus enlarge the area of freedom; to sup¬ 
press insurrection and rebellion; to fulfill the guaranties to the 
States of full faith and credit to judicial proceedings; the 
rendition of fugitives; republican form of government; the 
organization and supervision of Territorial governments, or 
“inchoate States;” the exclusive control over the Federal 
district, forts and arsenals; all matters of admiraltj^; the 
punishment of piracies and felonies upon the high seas ; and 
now to protect the citizens, not only against foreign oppres¬ 
sion, but against the encroachments of their own State gov¬ 
ernments and of one another; and that the National govern¬ 
ment and the States are restricted from passing bills of attain¬ 
der and ex post facto laws, creating titles of nobility, estab¬ 
lishing religion, or preventing the free exercise thereof; 
abridging the freedom of speech, of the press, or the right of 
petition; instituting domiciliary visits; abolishing grand juries 
and jury trial for the citizen not connected with the military 
service ; invading life, liberty, or property without due pro¬ 
cess of law, or in any matter violating the most enlarged 
principles of republican government. 

These are the great cardinal features of the government, 
and there are others of lesser moment, restricting direct tax- 


XXXVlll 


LECTURE BY THE AUTHOR. 


fitioii to representative numbers, forbidding export duties and 
other matters, of detail and security against Federal legisla¬ 
tion, and which prohibit the States from the exercise of 
national powers and making compacts with sister States— 
grants and restrictions which liave not been increased or di¬ 
minished by the amendments. And these very amendments 
have demonstrated what our fathers learned in the early days 
of the Republic, that if evils, real or supposed, exist, the 
charter itself has provided a peaceful mode of incorporating 
new provisions or abolishing old ones. And that fourscore 
years have elapsed, and only fifteen amendments, mostly de¬ 
claratory, have been incorporated, is encouraging proof, that 
none will be rashly made. 

There is one feature in the history of the fourteenth and fif¬ 
teenth amendments which might have assumed a serious form, 
but which fortunately, under the mighty influence of popular 
sentiment, we have escaped. I allude to the fact that after the 
amendments had been “ ratified by the legislatures” of several 
of the States, but before tlie necessary “ three-fourths ” had 
spoken, legislatures subsequently elected passed resolutions re¬ 
calling these ratifications. Here is a great question of power. 
The word ratify occurs but twice in the instrument, once as to 
the mode of amendment, and once as to the “ ratification ” of 
the original instrument by nine States. As to tlie latter, the 
nine might thus agree upon a government for tliemselves to 
the exclusion of those refusing their concurrence. But as to 
amendments three-fourths may ratify for themselves and for 
tliose refusing. Without any reference to the ])olitical aspect 
of the controversy, it has always seemed to me that the deriva¬ 
tion of the word and tlie reason and spirit of the article lead to 
the conclusion, that whenever a convention, as in the original 
case, or a legislature, as in the fifteen others, had ratified the 
whole instrument or an amendment, it agreed that so soon as 
the appropriate number should do likewise, the whole or the 
amendment should be binding; and that the force of the con- 


LECTURE BY THE AUTHOR. 


xxxix 


sent could not be dependent upon the subsequent will of the 
ratifying State, but upon the wills of the other States which 
might follow, indeed might have been induced to follow those 
very States which attempt to revoke their ratifications. The 
foundations of government are too deep, and the suj^erstruct- 
ure of too mighty weight to be the subjects of annual caprice. 

I have carefully examined the subtle arguments to the con¬ 
trary. They seem to me to be kindred to that theory which 
has cost rivers of blood and mountains of debt, the monstrous 
assumption that a State might, at any time and for any cause, 
witlidraw its ratification of the Constitution and set up as an 
independent nation. 

Our Constitution rests upon no false notions about the pre¬ 
ceding sovereign character of the States. They are bound by 
the surrenders to the extent of tlie expressed and clearly im¬ 
plied powers. And every covenant, including the riglit to 
amend in the mode provided, is one in which every citizen, as 
a citizen, as well as every corporation as such, has a deep and 
abiding interest; and terms of such covenant can only be 
peacefully changed in the manner provided in the instru¬ 
ment. 

We of Texas have little right to misunderstand what we 
surrendered. We were a constitutional republic. We had a 
flag and seal; a national existence; army and navy; foreign 
treaties; the right to coin money, and to do every thing which 
an independent nation may do. But by the act of annexation 
we saw our lone star move away and become the largest, if not 
the brightest, in the national galaxy. We knew and we felt 
that we were a nation no more; but only one thirtieth part of 
a great and mighty Republic. An effort to snatch the old star 
from the constellation has not hurt it, but greatly humbled 
those who so grossly mistook the theory of government. Con¬ 
quered, punished, and humiliated, that State, so fruitful of use¬ 
ful revolutionary precedents, is to-day asking readmittance to 
the full fellowship of our national fi-aternity. We return 


xl 


LECTUEE BY THE AUTIIOE. 


wiser if not better men, and we return to stay and grow as we 
did during our first decade in the Union, to increase threefold 
in ten years, and to become the great theater for new improve¬ 
ments, and the field for young and vigorous growth, j k| 

Tlie history of the last ten years has “ written a;id lead in 
the rock forever ” that an appeal to force, as a redress of tem¬ 
porary evils, or as a security for apprehended dangers, arouses 
the nation to a sense of the value of the compact, and more 
firmly binds us in the bonds of union. Therefore, there is no 
reason to despair of the Republic, so long as the true philoso¬ 
phy is understood, that our Constitution is ordained by the 
people and for the people, and that all magistrates are but the 
servants of the people, directly responsible to them. It should 
be the mission of every patriot, as far as in him lies, to teach 
the people the true principles of the Constitution ; to enlighten 
them as to their rights and responsibilities as citizens, and to 
shield them against wrong. 

To its study I have given much of my life. My permanent 
reproductions have been few, and only in the form of collect¬ 
ing definitions, arranging references and facts, and so syste¬ 
matizing the whole as to arrest the attention of students, and 
make easy the thorough mastery of the great principles which 
underlie our government. If my researches shall have aroused 
the attention of a few thoughtful minds, I shall felicitate my¬ 
self in the belief that my time has not been misspent. And 
could I select my own niche in the temple of fame, I w^ould 
prefer to be remembered as the writer who had been most 
successful in making easy the study of the charter of our 
liberties. If this Academy shall give a part of its infiuence to 
the philosophical teachings of the Constitution, and in de¬ 
monstrating how in its thirtieth decade it can be the bond 
of union for more thousands of millions of souls than mil¬ 
lions at the commencement, future ages Avill have reason to 
bless our labors. 


LB S ’06 


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